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Procurement challenges, later matters and limitation

Cornwall Council recently defeated procurement and judicial review claims over the provision of sexual health services in the county. Joseph Barrett sets out the wider points of principle from the High Court ruling.

In Royal Cornwall Hospitals NHS Trust v Cornwall Council [2019] EWHC 2211 (TCC) (13 August 2019) Cornwall Council successfully resisted claims brought under the Public Contracts Regulations 2015 (“the PCR 2105”) and in judicial review brought by Royal Cornwall Hospitals NHS Trust (“the Trust”), the principal local NHS healthcare provider.

The PCR 2015 and judicial review claims challenged the council’s decisions to conduct a competitive tender process for new contractual arrangements for the provision of sexual health services in Cornwall. The tender process resulted in a decision to award the contract to a new third sector service provider. The relevant services had previously been conducted by the Trust, pursuant to a direct contract award.

In brief summary, the Trust alleged that the financial envelope imposed by the council on the tender process was insufficient to ensure the required level of service provision and that the council had failed to have sufficient regard to various statutory duties, including the public sector equality duty pursuant to s. 149 of the Equality Act 2010.

Following a full contested hearing the High Court (Stuart-Smith J) held that the PCR 2015 claim was subject to statutory time-bar and/or lacked a realistic prospect of success, and should therefore be struck out in its entirety. The Court also dismissed an application by the Trust for specific disclosure.

The Judgment addresses some points of principle of wider significance:

  • The Court accepted the council’s submissions that the fact a PCR claim includes allegations in respect of later matters that would be ‘in time’ for the purposes of limitation cannot constitute a “good reason” for extending time in relation to a complaint regarding an earlier matter that is time-barred (Judgment, §19).
  • The Court accepted the council’s submissions that there was no real prospect of successfully arguing that the EU general principle of transparency could give rise to an enforceable legal obligation to provide information and documents regarding the evaluation process to a wider class of persons than those identified by the PCR 2015 (judgment, §§25-27).
  • The Court accepted the council’s submissions that a challenge to the evaluation process itself should be struck out if in substance it constitutes a reformulation of a statute-barred complaint relating to the terms of the underlying tender documents (Judgment, §29).

Following the Court’s decision that the PCR 2015 claim should be struck out in its entirety, with the consequence that the automatic suspension on contract-making was brought to an end, the Trust discontinued its related judicial review proceedings.

The council is accordingly now able to proceed to implement the new outsourced service arrangements.

Joseph Barrett of 11KBW, instructed by DWF, was sole counsel for the successful Defendant (Cornwall Council) throughout the litigation. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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